Bracing the armor: extending rape shield protections to civil proceedings.

AuthorHines, Patrick J.


As a society we look to punish rape offenders harshly. But doing so is only part of the story. While every victim's experience is different, a common narrative emerges. Months after the event, a rape victim's attacker is on trial. The defense seeks to introduce witness testimony that she (1) has had several previous sexual partners, was seen dancing provocatively at a bar that night, and kissed another man the same evening. Under the state's rules of evidence, the testimony is presumptively excluded, and the attacker is convicted. He goes to jail, but that is not the end of the story. The victim finds her life in shambles. After leaving the hospital, she is unable to sleep for months, always reliving the event in her mind. She is unable to work because she is constantly exhausted and cannot focus. She loses her job. She looks to her partner for support, but he leaves her when they find out she has contracted a sexually transmitted disease from her attacker. She finds herself without a job, without a home, and without a way to pay for treatment.

Seeking justice, she sues her attacker for compensatory damages. But this time, the defense is allowed to broadly probe her personal life. During discovery she is compelled to disclose the number of sexual partners she has had and the intimate details of her relationships. At trial, the defense introduces these details, including evidence that she has been the victim of previous sexual abuse, and argues that the injury caused by her attacker is less than she claims because of her previous experience. The defense also seeks to introduce the same witness testimony excluded in the criminal trial. Her attorney objects, but the court finds that the bar for relevance is low and that her previous consent with others makes her consent more likely with her attacker. It further finds that any mental injury caused by her previous abuse is relevant to reduce her recovery for mental injury caused by her attacker. This is the plight of rape victims in many states' civil courts.

The Supreme Court of Nevada recently held that, unlike its federal counterpart, (2) Nevada's rape shield statute (3) applies only to criminal proceedings. (4) However, the court also limited discovery of a civil plaintiffs sexual past by stressing the analysis under Nevada's equivalent of Federal Rule of Civil Procedure 26(c)(1), providing that a court may issue protective orders to prevent "annoyance, embarrassment, oppression, or undue burden or expense[]." (5) By doing so, the court implicitly recognized that the embarrassment of having to disclose irrelevant and prejudicial details of one's personal life can hinder not only criminal prosecutions, but legitimate civil actions as well.

This recognition highlights the important purpose of rape shield laws: the encouragement of reporting by preventing embarrassment and the prevention of reliance on misconceived notions about sexual misconduct. (6) In furtherance of this purpose, the federal government and almost all states (7) have some form of evidentiary protection for rape victims in criminal proceedings, but only a few jurisdictions have adopted protections for civil plaintiffs. (8)

This Note argues that the purpose of rape shield statutes requires that protections be extended beyond just criminal complainants and applied in the context of civil actions. Criminal prosecutions often provide inadequate redress for victims, even when successful. Civil actions, on the other hand, provide a variety of advantages for victims that can, to the extent possible, help compensate them for the unique damages they suffer from rape and from other sexual misconduct. Extending rape shields furthers the goal of holding offenders responsible for sexual misconduct by encouraging reporting and preventing a defendant's reliance on myths embraced by courts and juries to escape responsibility.

Part I of this Note provides a brief overview of the history of rape law in America and the myths and cultural biases pursuant to which evidence of prior sexual history was freely admitted in rape prosecutions. It then discusses the reasoning and policy goals behind the original passage of rape shield statutes, first in the criminal context, and then extending the federal rules to civil proceedings as well. Part II highlights the specialized injuries suffered by rape victims and the limited ability of criminal law to adequately remedy such injuries. It then points out the significant opportunities provided by civil actions not only for rape victims to seek monetary or injunctive relief, but also to complement the retributive goals of criminal law. Part III points out that civil proceedings are as susceptible to infection by rape myths as criminal proceedings, and the absence of rape shields potentially deters victims from seeking redress. It then points to specific examples of cases infected by traditional rape myths through the admission of evidence of previous sexual history. I argue that subject to exceptions, such history should be considered irrelevant to the issue of liability and the calculation of damages. I conclude that in civil proceedings states should prevent defendants from using evidence of sexual history to embarrass victims or invoke rape myths that confuse and prejudice jurors and undermine the goals of tort law.


    Prior to the introduction of rape shield laws, evidence of sexual history and predisposition was not only freely admissible, but encouraged. (9) The rationale used for the admissibility of such evidence reflects traditional rape myths that persist today. First, pre-rape shield courts admitted evidence of sexual history to impeach a witness's credibility on the theory that a witness with "bad moral character" will be less truthful than one with "good moral character." (10) Second, courts considered evidence of sexual history to be probative on issues of consent. (11)

    The idea that sexual propensity bears on credibility and consent is grounded in cultural attitudes and myths about sexual conduct, the crime of rape, and rape victims. (12) For example, the perception of evidence in rape cases is affected by the degree to which the facts conform to the "ideal" rape case. The stereotype of an "ideal" rape victim involves a virtuous virgin, acting cautiously by remaining where she is "supposed" to be, who is suddenly ambushed by a crazed stranger. (13) This ideal reflects several prevailing notions about women in society. First, that only sex within heterosexual marriage is morally acceptable. (14) If a woman cohabitates with a man prior to marriage or engages in premarital sex, she lacks moral character and is thus more likely to consent to any particular encounter with anyone or to lie about the encounter after the fact. Second, it reflects the tendency to blame victims for precipitating the attack, or "asking for it." (15) If a woman dresses provocatively, flirts excessively, or keeps late hours in places where she is not "supposed" to be, either she is culpable and thus less credible or she constructively consented. Third, the "ideal victim" stereotype is partly derived from a longstanding common law notion of women as property. (16) A virgin was traditionally considered "a prize to be won," (17) while unmarried nonvirgins were "sullied property" (18) and thus entitled to less protection in the eyes of the law. While not explicitly categorizing women as property or legally requiring that victims be chaste in order to be protected, courts well into the twentieth century imposed a de facto chastity requirement by allowing defendants to introduce evidence of sexual history and predisposition that implicated the "ideal victim" requirement. (19)

    It is against this backdrop that women's rights activists of the 1970s sought to prevent rape defendants from introducing evidence of complainants' past sexual histories. Beginning with Michigan in 1974, (20) almost every jurisdiction and the federal government had adopted some form of rape shield protection for criminal complainants by the early 1980s. (21) The drafters of Rule 412 of the Federal Rules of Evidence recognized the minimal probative value and prejudicial nature of sexual history evidence. (22)

    The main concern for Congress was prohibiting inquiry into private sexual histories. (23) Former Representative Elizabeth Holtzman noted the problem of "humiliating cross-examination of [victims'] past sexual experiences and intimate personal histories." (24) A second but equally important concern was preventing defendants from putting "the victim rather than the defendant ... 'on trial.'" (25)

    The passage of rape shield statutes required balancing among several competing interests: a defendant has a constitutional right to present a defense and confront witnesses against him; a victim of sexual misconduct should be protected against undue harassment and embarrassment; and society benefits from rape victims coming forward to hold offenders responsible. (26) Because of these competing interests, all jurisdictions have developed exceptions to rape shield protections, either judicially or legislatively, that allow admission of evidence in certain circumstances. While some of these exceptions make sense and should be supported, such as allowing evidence of specific instances of sexual behavior to prove that a person other than the accused was the source of semen or injury, (27) other exceptions allow the "ideal victim" requirement to persist. (28) For example, five states have an exception for evidence of prior pattern sexual conduct with third parties, (29) allowing defendants to rely on the myth that prior consent to conduct with a third party makes consent to the conduct at issue more likely.

    In 1994, Congress extended federal rape shield protections to civil plaintiffs. (30) The purposes articulated were...

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